221 Mass. 20 | Mass. | 1915
The substituted declaration in this case contains two counts under the employers’ liability act. One alleges a defect in the ways, works, appliances and mechanism used in connection with the business of the'defendant, and the other alleges the negligence of a person in the service of the employer, whose sole or principal duty was that of superintendence.
The plaintiffs are daughters of Alexander MacLellan and seek to recover for his instantaneous death while in the employ of the defendant.
It appeared that the deceased was an experienced lineman, who had worked as such for various electric light companies and a telephone company for sixteen or eighteen years before his death; that most of his work had been on electric light and telephone poles, and that he was not a ground man, so called, but his principal work had been upon such poles.
On the day of the accident the defendant was changing its wires to a new location on Southampton Street in Boston. The deceased and some other linemen, in charge of one Scanlon (who it was admitted was a superintendent under the employers’ liability act), were present, and Scanlon told the deceased and one Barnes to move a guy wire, which ran from a pole referred to in the record as “D,” and to attach it to a telephone pole on the southerly side of the street a few feet away from pole “D.” This pole “D” was called a “stub.” This “stub” pole "D” was about
i Barnes and the deceased then undertook to remove the guy wire. Barnes placed a ladder against the “ stub,” climbed it, carrying a block and falls, and attached it to the guy wire; then he climbed down and set up the falls, making them fast to a fence. He then climbed the ladder again, taking with him bolt cutters, and after cutting the guy descended to the ground and slacked off the falls. While Barnes was engaged in pulling the guy wire down from the return wires where it had lodged, the deceased climbed the ladder to remove from the “stub” the “stopper,” so called, which attached the block and falls to the "stub.” Immediately afterwards the “stub” or pole broke off two or three inches below the ground, which was frozen, and the deceased was thrown over a fence on to some rocks, and was instantly killed.
There was evidence to show that where the pole had broken below the surface of the ground it was decayed. The witness Barnes testified that the stub “D,” upon which MacLellan was when he was killed, was a guy stub supporting Edison poles, and that the defendant company had no wires upon it. After the witness Barnes had so testified, the presiding judge
Nor can it be found that Scanlon was negligent in failing to include in his order to cut the guy wire directions as to how it should be done, because from his experience the deceased must have known the proper way in which to do the work and needed no instructions as to the manner of its performance. There was no evidence to warrant- a finding that the order of Scanlon was a negligent order. Tanner v. New York, New Haven, & Hartford Railroad, 180 Mass. 572.
The case is plainly distinguishable from McCoy v. Westborough,
As there is no evidence to show that the defendant was negligent we need not consider whether the deceased was in the exercise of due care.
One Garrick, a witness called by the plaintiffs as an expert, was asked as to the proper method of testing a pole when the ground was frozen. He also was asked as to what order should be given to a lineman to change a guy, and as to whether certain orders recited in the questions would be proper. These questions were excluded by the presiding judge as immaterial, but the witness was permitted to testify that the method adopted by the deceased and his fellow workmen in changing the guy was improper. In view of this testimony and talcing into consideration the long experience of the deceased in doing similar work, we are of opinion that the evidence was excluded rightly. If for any purpose it could have been considered competent, we are of opinion that its exclusion did not affect injuriously any substantial rights of the plaintiffs. St. 1913, c. 716, § 1.
The exceptions to the exclusion of evidence cannot be sustained. In accordance with the terms of the report judgment is to be entered for the defendant on the verdict.
So ordered.
The case was tried before White, 3., who ordered a verdict for the defendant and reported the case for determination by this court.